i

NO. 6138

In the 42nd Judicial District Court of Texas

at Coleman, Texas

IN RE POWER TO TRANSFORM INCORPORATED,

RELATOR

PETITION FOR WRIT OF MANDAMUS

PRO SE

ORAL ARGUMENT REQUESTED

ii

IDENTITY OF PARTIES AND COUNSEL

Relator: Power to Transform, Incorporated, Pro Se

Real Parties in Interest: Citizens and businesses of Coleman, Texas

Respondent: The city of Coleman Texas,

The city council of the City of Coleman, Texas

Counsel for Respondent: Pat Chesser, City Attorney

501 Center Avenue

Brownwood, Texas 76801

325-646-5775

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TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL................................................................................................ ii

TABLE OF AUTHORITIES..................................................................................................................... iv

STATEMENT OF THE CASE ................................................................................................................. v

STATEMENT OF JURISDICTION .......................................................................................................... vi

ISSUE PRESENTED.............................................................................................................................. vii

STATEMENT OF FACTS....................................................................................................................... 1

ARGUMENT ....................................................................................................................................... 4

I. Power to Transform, Inc has standing to bring this action. ........................................ 4

II Mandamus is proper because Respondents have refused to

perform ministerial duties. ....................................................................................... 4

A. Respondent had a non-discretionary duty to approve both initiative ordinances or

submit the issue to a vote

under the City’s charter mandatory. ............................................................ 5

B. Respondent was misguided by the City attorney’s

reliance on inapplicable law.......................................................................... 5

III. Mandamus is proper because Power to Transform does not have an

adequate remedy by appeal. .................................................................................... 13

PRAYER .............................................................................................................................................. 14

CERTIFICATE OF SERVICE................................................................................................................... 15

AFFIDAVIT AND VERIFICATION.......................................................................................................... 16

EXIBIT A ............................................................................................................................................. 17

EXIBIT B ............................................................................................................................................. 18

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TABLE OF AUTHORITIES

Cases

Walker v. Packer,

827 S.W.2d 833, 840 (Tex. 1992) .................................................................. 4

Anderson v. City of Seven Points,

806 S.W.2d 791, 793 (Tex. 1991)................................................................. 5

Denman v. Quin,

116 S.W. 2d 783 (Tex. App. - San Antonio [4th Dist.], 1938.)....................... 6,7,8

Glass v. Smith,

150 Tex. 632, 244 S.W. 2d 645 (Tex., 1951).................................................. 6,7,8,9,10,11,12

Humphrey v. Balli,

61 S.W. 3d 519 (Tex. App. - San Antonio, 2001) ........................................... 6,8,11

Winder v. King,

Tex.Com.App., [150 Tex. 636] 1 S.W.2d 587................................................. 11

Convention, Etc. v. Dc Bd. of Elec.,

Etc. 441 A.2d 871 (1980) .............................................................................. 11

CITY OF AUSTIN v. QUICK

930 S.W.2d 678 (Tex. App. - San Antonio, 1996)......................................... 12

Statues

TEX. CONST. art. 5, § 8 ...................................................................................................... vi,13

TEX. GOV. CODE § 24.011 ............................................................................................... vi

v

STATEMENT OF THE CASE

Nature of underlying proceedings: This is an original mandamus proceeding.

Respondent: The city of Coleman, Texas

Action from which Relator seeks relief: Respondent’s failure to comply with Section 4.05 of the City Charter of the City of Coleman, Texas.

vi

STATEMENT OF JURISDICTION

This Court has jurisdiction to issue a writ of mandamus pursuant to Article 5, Section 8 of the Texas

Constitution and section 273.061 of the Texas Government Code

TEX GV. CODE ANN. § 24.011: “A judge of a district court may, either in termtime or vacation, grant writs of mandamus, injunction, sequestration, attachment, garnishment, certiorari, and supersedeas and all other writs necessary to the enforcement of the court's jurisdiction.”

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ISSUE PRESENTED

On May 7th

, 2015, the Coleman City Secretary certified the two “Electrical”

initiative petitions (ordinances amending ordinances) as being sufficient per

section 4.04 of the City charter.

As provided for in section 4.05 of the City charter: “When the Council receives an

authorized initiative petition certified by the City Secretary to be sufficient, the

Council shall either:

(a) Pass the initiated ordinance, without amendment, within thirty (30) days

after the date of the certification to the Council; or

(b) Submit said initiated ordinance, without amendment, to a vote of the

registered voters of the City at a regular or special election to be held

within ninety (90) days after the date of the certification to the Council;

or

(c) At such election, submit to a vote of the registered voters of the City said

initiated ordinance without amendment, and an alternative ordinance on

the same subject proposed by the Council.”

On May 21, 2105, during the next regular session of the Coleman City Council, the

City Council of the City of Coleman, Texas, (respondent) voted unanimously, as

advised by the city attorney (counsel for respondent) after meeting in executive

session, to take no action and/or reject both ordinances presented to the Council

by petition of the citizens because they are not legal topics for initiative or

referendum.

Relator argues that the two ordinances are, in fact, appropriate for initiative; and,

thus, the Council failed to follow the mandate of its own charter and has refused

to perform ministerial duties.

1

STATEMENT OF FACTS

On, April 10th, 2015, at 4:30 pm, two initiative petitions containing two separate ordinances

amending ordinances (exhibits “A” and “B”) pertaining to the City of Coleman’s municipally-

owned utility (MOU) electrical system was duly submitted to Coleman’s city secretary by

representatives of the citizens of Coleman, Texas.

On May 7th

, 2015, the Coleman city secretary certified the two petitions as being sufficient per

section 4.04 of the City charter.

As provided for in section 4.05 of the City charter: When the Council receives an authorized

initiative petition certified by the City Secretary to be sufficient, the Council shall either:

(a) Pass the initiated ordinance, without amendment, within thirty (30) days after the

date of the certification to the Council; or

(b) Submit said initiated ordinance, without amendment, to a vote of the registered

voters of the City at a regular or special election to be held within ninety (90) days after

the date of the certification to the Council; or

(c) At such election, submit to a vote of the registered voters of the City said initiated

ordinance without amendment, and an alternative ordinance on the same subject

proposed by the Council.

On May 21, 2105, during the next regular session of the Coleman city council, the City Council

of the City of Coleman, Texas, (respondent) voted unanimously, as advised by the city attorney

(counsel for respondent), to take no action and/or reject both ordinances presented to the

City by petition of the citizens because they are not (in counsel’s opinion) legal topics for

initiative or referendum.

2

During the same meeting, counsel for respondent, during the regular session provided opinion

based on generalities and vague associations of Texas law and the City charter, contending

that both ordinances were non-legislative and the subject matter of both ordinances had been

withdrawn from the field of initiative or referendum. The City attorney informed the public

that a factor in his opinion was “Not a single case has ever upheld a petition that sets rates or

repeals rates”.

Relator respectfully disagrees and believes that the two ordinances are appropriate for

initiative and that both ordinances are legislative in character and are not administrative.

Further, the proposed ordinances have not been withdrawn or excluded by general law or the

charter, either expressly or by necessary implication, from the operative field of initiative

therefore, Respondent failed to follow the mandate of its own charter and has refused to

perform ministerial duties.

Relevant here, is that counsel for respondent has failed to show any specific statues or cases

supporting the opinion that such ordinances are not appropriate for initiative; moreover, such

discretion is not afforded the City. The resultant failure of the City Council to perform its

ministerial duties as mandated by its own charter has unlawfully circumvented the due

process granted the citizens of Coleman, who seek relief from the current electrical rates being

charged by the City of Coleman.

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The MOU, owned and operated by the City of Coleman, charges its citizens an electrical rate

that is currently higher than any other MOU in the state of Texas. Many believe these rates

are both usurious and burdensome to both residents and businesses alike.

The petitions, having been signed by a significant number of citizens, clearly demonstrate the

democratic request by the citizens of Coleman for relief from such burdensome rates. The

citizens have invoked their right to act legislatively and expect the City to act in a lawful

manner and follow the mandate of the city charter.

Relator, acting on behalf of itself and the petitioning citizens of Coleman, therefore petitions

the Court to issue a writ of mandamus compelling the City to perform its ministerial duties as

mandated by the City charter to prevent further harm to the citizens and businesses of

Coleman.

4

ARGUMENT

Respondents have blatantly refused to comply with a mandatory, non-discretionary provision of

their own city charter.

Power to Transform, Incorporated, (PTT) and the citizens of Coleman have no adequate remedy by

appeal and thus respectfully request that this Court grant our petition and direct Respondent to

follow section 4.05 of the charter.

I. PTT has standing to bring this action.

PTT is a Texas non-profit corporation, whose members are citizens and/or business owners

within the city limits of Coleman, Texas. Because the City failed to properly follow section

4.05 of its home rule charter, PTT members as well as the general citizenship of Coleman

have been and continue to be harmed by this unlawful action.

II. Mandamus is proper because Respondents have refused to perform ministerial duties.

A writ of mandamus will issue to correct a clear abuse of discretion or the violation of a duty

imposed by law when there is no adequate remedy by appeal. E.g.,

Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). “There are two requirements to a

mandamus. The relator must show, first, a clear abuse of discretion and, second, that he

has no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124,

135–36 (Tex. 2004). The “[t]raditional[]” way in which to establish a clear abuse of

discretion is by showing that an entity failed to perform a ministerial law or duty. See

Walker, 827 S.W.2d at 839; Wortham v. Walker, 128 S.W.2d 1138, 1150 (1939). A duty

or law is ministerial if it “is mandatory and allows for no discretion.” Duffy v. Branch,

828 S.W.2d 211, 213 (Tex. App.—Dallas 1992, orig. proceeding).

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A. Respondents had a non-discretionary duty to either approve the ordinances without

amendment or submit the issue (with or without their own version) to a vote under

the City’s charter mandate.

Here, the citizen petitions filed with the city on April 10th, 2015 demanded that the city

council consider the two Electrical Ordinances and, if the council did not pass the

ordinances, submit the two Electrical Ordinances to a popular vote. When presented with

the valid petitions, the City Council had the choice of only three lawful actions; however,

Respondent decided to ignore them. By refusing to follow the only options it had, per

section 4.05 of the City charter, Respondent refused to perform its non-discriminatory or

ministerial duties.

See Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991) (mandamus relief

appropriate because mayor’s refusal to order an election when presented with a

complying petition amounted to a failure to perform a ministerial act); Duffy, 828

S.W.2d at 212–14 (mandamus relief appropriate to compel city council member to hold

recall election when all necessary requirements for holding such an election were met);

Burns v. Kelly, 658 S.W.2d 731, 732 (Tex. App.— Fort Worth 1983, orig. proceeding)

(mandamus relief appropriate to compel city council to hold election to recall member

of city council when required under the law).

B. Respondent was misguided by the city attorney’s reliance on bad law.

Respondent did not discuss the petitions or consider the matter during the regular session

of the city council because the unelected city attorney advised them that the two citizen

initiative petitions were, in his opinion “not appropriate”. In addition, the city attorney

contends that both ordinances are administrative in character and the subject matter of

both has been withdrawn from the field of initiative or referendum.

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Relator respectfully disagrees, and contends both ordinances are clearly legislative

and neither has been withdrawn.

1. The two Electrical Ordinances are legislative in character, and not administrative:

Denman v. Quin, 116 S.W.2d 783, 786 (Tex. Civ. App. San Antonio 1938, writ

ref'd): “It is obvious that ordinances intended by the electorate to be subject to

referendum are those which are legislative in character, as distinguished from

those of an administrative or executive nature”

Humphrey v. Balli 61 S.W.3d 519 (Tex.App.-San Antonio 2001), (which further

cites Denman): Legislative matters are those "of a general, or permanent,

character"; and a legislative ordinance is one "originating or enacting a

permanent law or laying down a rule of conduct or course of policy for the

guidance of the citizens or their officers and agents." Denman v. Quin, 116

S.W.2d 783, 786 (Tex. Civ. App. San Antonio 1938, writ ref'd). Administrative or

executive ordinances, on the other hand, "are only transitory, or temporary, or

routine ... in their purpose and effect," and "an ordinance which simply puts into

execution previously-declared policies, or previously-enacted laws, is

administrative or executive in character." Id. The sale of city-owned property is a

legislative act. See Brooks v. Watchtower Bible & Tract Soc'y of Florida, Inc., 706

So.2d 85, 89 (Fla. Ct. App. 1998).2. The ordinance at issue in this case authorizes

a permanent, uniquely policy-oriented act.

Also: Glass v. Smith, 150 Tex. 632, 244 S.W. 2d 645 (Tex., 1951) “We agree with

the conclusion of the Court of Civil Appeals that the subject matter of the

proposed ordinance is legislative in character. This seems to us to be settled by

the opinion of this Court in the case of Taxpayers' Ass'n of Harris County v. City

of Houston, 129 Tex. 627, 105 S.W.2d 655. The fact that the proposed ordinance

involved in that case fixed only minimum salaries whereas the proposed

ordinance here sets up a fixed scale of salaries renders the proposal here

nonetheless legislative in character. See McQuillen on Municipal Corporations,

3rd Edition, Vol. 5, § 16.57, pp. 262 and 263, and the cases there cited.”

a. Ordinance A (Exhibit A):

i. is legislative in character, as it enacts a permanent law, laying down a rule of

7

conduct or course of policy for the guidance of the citizens or their officers

and agents;

ii. does not administer the periodic (monthly or annual) electrical rate charged

by the city. Instead, Ordinance A sets a maximum ceiling on the electrical

rate the city may charge. Again, in Denman v. Quin, “Pursuing the question

further, an ordinance fixing salaries to be paid city officials is a practical

example of those which are referable, it being a permanent general law

empowering the Board of Commissioners to levy taxes and appropriate the

public funds to put that law into execution.”

iii. fixes a maximum ceiling on the electrical rate not to exceed the greater of (a)

12 cents per kilowatt hour or (b) 3 cents per kilowatt hour above the

combined rate paid to purchase wholesale electricity (inclusive of all direct

charges). As affirmed in Glass v. Smith, fixing maximum operative

parameters is found to be legislative: as such, the administrative, minstrel

duties of setting the appropriate electrical rate within the legislative

boundaries still remains within the city;

iv. is acknowledged by the city attorney, by implication, that it is fixing a

maximum rate: he made reference to Exhibit A as “the Rate Cap Ordinance”.

During the public session of the city council on May 21, 2015, the city

attorney, after reading Ordinance A aloud and in its entirety, said: “I will

refer to this ordinance as “the Rate Cap Ordinance”, in essence agreeing that

Ordinance A does not set (administer) an electrical rate; but, instead, caps the

8

rate the city may charge while leaving it to the city to administer the electrical

rates it finds prudent, providing it does not exceed the maximum rate set forth

through this legislative action. In furtherance, we offer rebuttal to the

argument by the city attorney, who states: “Not a single Texas case has ever

upheld a petition that sets rates or repeals rates.” We clearly disagree and find

this statement to be misguided. This is not in question, since neither

ordinance sets or repeals a rate

b. Ordinance B (Exhibit B):

i. demands that the municipally-owned utility be divested within a designated

time. It is, therefore, legislative in character, as it enacts a permanent law,

laying down a rule of conduct or course of policy for the guidance of the

citizens or their officers and agents.

ii. is affirmed by multiple precedents, where the sale of city owned property

has been repeatedly opined to be a legislative act. Again, in HUMPHREY v.

BALLI

“The ordinance at issue in this case authorizes a permanent, uniquely

policy-oriented act:”

The sale of the city’s municipally-owned utility is not routine, nor is it the

implementation of a previously-enacted law.

HUMPHREY v. BALLI “Therefore, guided by Glass and Denman and in keeping

with the decision in Brooks, we hold the ordinance at issue in this case

legislative in nature as a matter of law. “

The sale of city-owned property is clearly a legislative act.

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2. The two Electrical Ordinances have not been withdrawn or excluded by general

law or the charter, either expressly or by necessary implication, from the

operative field of initiative.

Respondent, by opinion of counsel, states that general law and the city charter

confer on the city council exclusively the authority to pass ordinances dealing

with the matters of these two Electrical Ordinances; yet, nowhere in the city

charter, or in general law, is this exclusive authority granted. (See Section

13.04.001 (of the Coleman City Charter): Rates, deposits, penalties and service

charges.)

“The utility billing office is hereby authorized to charge and collect monthly

service charges for water, sewer, garbage and electricity services, security

deposits, penalties, fees and other charges established by ordinance or

resolution. The amounts to be charged shall be established by ordinance or

resolution of the city council and adjusted from time to time as necessary to

sustain efficient utility services and comply with laws and regulations.”

As opined in Glass, The terms “shall” or “authorized” do not imply or confer

exclusive authority.

Glass v. Smith, 150 Tex. 632, 244 S.W. 2d 645 (Tex., 1951) “The legislative

direction that classification 'shall be provided by ordinance of the City

Council', does not negate the right and power of the people to pass the

classification ordinance. The legislature's use of the words 'City Council, or

legislative body' is simple of explanation. All legislative powers conferred by

statute on municipalities in this state are conferred on the 'City Council' or

'City Commission'. It is to be doubted that there exists anywhere in our

10

statutes a provision that a given legislative power of a municipality may be

exercised 'by the people' or 'through the initiative'.”

And later continued: “If it were held that legislative powers could not be

exercised by the people through the initiative in all cases in which the

statutes provide that they shall be exercised by the 'City Council', the people

would be shorn of all right to exercise any of the statutory powers conferred

on municipal governments and the initiative would become an empty

symbol. “

a. Ordinance A (Exhibit A):

i. has not been withdrawn or excluded by general law or the charter, either

expressly or by necessary implication, from the operative field of initiative.

ii. has not been withdrawn explicitly, as there is no language that setting a fixed

electrical rate or maximum rate can ‘only’ or ‘exclusively’ be enacted by the

City Council is significant and therefore such power remains within the

legislative process of referendum and/or initiative, barring any other explicit

or implied impediments.

“If the mere fact that a particular provision directs that the City

Council exercise a particular legislative power were held to exclude

the right of the people to exercise the same power, it might well be

argued that Section 1 of Article XI of the [Austin] Charter completely

nullifies the initiative provision of the Charter. Of course it does not.”

(Glass v. Smith)

b. Ordinance A (Exhibit A):

Has not been withdrawn or excluded by general law or the charter, either

expressly or by necessary implication, from the operative field of initiative.

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There is no language in general law or the city charter removing this matter (the

sale of city-owned property) from referendum or initiative. Further, by implication,

Glass v. Smith and Humphrey v. Balli both concur that the sale of property remains

within the legislative authority of the people.

3. Non-interference.

The court, by law, must defend the right of the people to act in a legislative manner.

Convention, Etc. v. Dc Bd. of Elec., Etc. 441 A.2d 871 (1980)

“ [i]t is a general rule that grants of power to municipal corporations to adopt

municipal legislation by exercise of initiative or referendum are to be liberally

construed, to the ends of permitting rather than restricting the power and to

attaining rather than preventing its object. [5 E. McQuillin, Municipal

Corporations § 16.51, at 203-04 (3d rev.ed.1969) (citation omitted)

(emphasis added).]

Thus, the law requires a mind set to favor the right to vote unless there are

compelling reasons to do otherwise.”

In Glass v. Smith “A like holding was made by the Commission of Appeals in

the case of Winder v. King, Tex.Com.App.,[150 Tex. 636] 1 S.W.2d 587. The

basis of the decisions in the City of Austin and the Winder cases was that the

courts will not interfere with the exercise by the people of their political right

to hold elections. …”

“After referring to the City of Austin and the City of Dallas cases, the Court of

Civil Appeals in the instant case said that 'as a corollary to the rule of

nonjudicial interference with elections the courts are duty bound to prevent

all interference with the political power of the people.' (238 S.W.2d 249) It

was in keeping with this pronouncement that the Court of Civil Appeals held

that the writ of mandamus would issue irrespective of the possible invalidity

of the proposed ordinance.”

Also in Glass v. Smith “Since the subject matter of the proposed ordinance is

legislative in character and neither the general law nor the City Charter of the

City of Austin has withdrawn from the people the right to deal with the

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subject matter thereof under the initiative provisions of the Charter, it

follows that the [Relator is] undertaking to exercise only such rights as are

legally theirs.”

Also in Glass: “When the people exercise their rights and powers under the

initiative provisions of a city charter and thereby become the legislative

branch of the city government, the members of the City Council, like other

city officials and employees, become ministerial officers in the legislative

process, burdened with the mandatory obligation of performing the duties

imposed upon them incidental to carrying out the initiative procedure. There

is nothing in the charter that qualifies the mandatory duty of petitioners in

the calling and holding of initiative elections so that they may decline to hold

those which in their opinion might result in the adoption of void ordinances.

Furthermore, the duty to call and hold the election is one imposed by the

charter in order that the legislative machinery of the city may function to the

full extent of its intendment.”

4. Complexity.

CITY OF AUSTIN v. QUICK 930 S.W.2d 678 (1996)

“These cases notwithstanding, there is no common law rule that certain issues

are too complex and technical to be adopted pursuant to the initiative and

referendum process. In each of the cases the landowners cite, the legislative

function was either expressly conferred on a governmental body exclusively or a

prerequisite action required by law (such as a public hearing) had not taken

place. The Supreme Court of Texas has noted this key distinction in Glass v.

Smith, 150 Tex. 632, 244 S.W.2d 645 (1951):”

“In all Texas cases called to our attention in which it has been held that the

people of a municipality could not validly exercise a delegated legislative power

through initiative proceedings, it will be found that authority to act was

expressly conferred upon the municipal governing body exclusively, or there was

some preliminary duty such as the holding of hearings, etc., impossible of

performance by the people in an initiative proceeding, by statute or charter

made a prerequisite to the exercise of the legislative power.”

Glass v. Smith “There may be those whose political philosophy cannot accept the

initiative and referendum as a sound investment of political power. But the wisdom

of the initiative and referendum is not the question here; the question of their

13

wisdom was foreclosed when they became a part of the []Charter. They are as much

a part of the Charter as is the provision for a City Council. Once the people have

properly invoked their right to act legislatively under valid initiative provisions of a

city charter and the subject matter of the proposed ordinance is legislative in

character and has not been withdrawn or excluded by general law or the charter,

either expressly or by necessary implication, from the operative field of initiative,

members of the City Council and other municipal officers should be compelled by

the courts to perform their ministerial duties so as to permit the legislative branch of

the municipal government to function to the full fruition of its product, though that

product may later prove to be unwise or even invalid. The Charter of the City of

Austin requires the publication of penal ordinances by the City Clerk before they

may become effective”

III. Mandamus is proper because PTT does not have an adequate remedy by appeal.

An original mandamus proceeding is the only remedy that can force respondents to

follow Section 4.05 of the city charter and ensure the two certified citizen-initiated

ordinances to be allowed to come to a popular vote.

The city is taking actions to proceed with multiple other electrical studies, consultations

and planning using taxpayers’ money that will not be appropriate if either of the two

citizen initiatives is passed either by council or via popular vote.

The Texas Constitution (article 5, § 8) confers upon this Court “the jurisdiction District

Court judges shall have the power to issue writs necessary to enforce their jurisdiction.”

Respondents have simply refused to follow the law; only mandamus by this Court can

remedy that failure and avoid further harm to the citizens of Coleman.

14

PRAYER

The Citizens have properly invoked their right to act legislatively under valid initiative provisions of

the city charter, the subject matter of the two proposed ordinances are legislative in character, and

the proposed ordinances have not been withdrawn or excluded by general law or the charter either

expressly or by necessary implication from the operative field of initiative. Thus, Power to

Transform, Incorporated, respectfully requests this Court grant this petition and require

Respondent to follow the provisions contained in section 4.05 of the city’s charter.

Respectfully submitted,

Craig Allen

By:

Craig Allen

For Power to Transform, Inc.

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CERTIFICATE OF SERVICE

I hereby certify that on this, the 31st

day of August, 2015, a true and correct copy of the

foregoing Petition for Writ of Mandamus and Record in Support of Petition for Writ of

Mandamus was sent by the means noted to the following counsel of record:

Counsel for Respondent:

Pat Chesser - City Attorney

501 Center Ave

Brownwood, Texas 76801

325-646-5775

via PatChesserlaw@yahoo.com & certified mail of the U.S. Post office.

Craig Allen

16

AFFIDAVIT AND VERIFICATION

STATE OF TEXAS §

COUNTY OF COLEMAN §

BEFORE ME, the undersigned authority, on this day personally appeared

Craig All who, being duly sworn, deposed and said the following:

1. My name Craig Allen. I am over the age of eighteen (18), have never been

convicted of a crime, and am fully competent and able to make this affidavit. The

facts stated in this affidavit are within my personal knowledge and are true and

correct.

2. I am an executive member of Relator, Power to Transform, Inc.

3. The factual statements in Power to Transform, Inc’s petition for writ of

mandamus are true and correct, based on my personal knowledge.

______________________________________________

Craig Allen

SUBSCRIBED AND SWORN TO BEFORE ME on this 31st

day of August 2015 to

certify which witness my hand and official seal.

Notary Public in and for the State of Texas _____________________________________

My Commission Expires: _____________________________

17

EXHIBIT “A”

Ordinance Number: ________

AN ORDINANCE AMENDING ORDINANCE, ARTICLE 13.04.101 DIVISION 3, MAXIMUM ALLOWED

PRICE DIFFERENTIAL BETWEEN THE TOTAL COST OF ELECTRICITY PAID FROM ITS WHOLESALE

ELECTRICAL PROVIDER AND THE TOTAL PRICE CHARGED BY AND THROUGH CITY OF COLEMAN

WHILE OPERATING AS A MUNICIPALLY OWNED UTILITY.

Be it ordained by the City Council of the City of Coleman, Texas that:

The City of Coleman, while operating as a Municipally Owned Utility (MOU), shall charge its

residential, commercial and nonresidential customers an electrical rate (the Combined Rate)

inclusive of all power cost adjustments, congestion fees, ancillary charges and other associated

charges not to exceed the greater of:

a) .12/kWh, or

b) .03/kWh above the Combined Rate paid to purchase wholesale electricity (inclusive of all

direct charges).

The City shall continue to charge a meter fee in addition to the Combined Rate as documented in

the 2014-15 published electrical rate schedule. The City may increase such meter fees at a rate not

to exceed 3% per annum.

This section does not impede the right of the city to negotiate electrical rates as currently provided

for in §13.04.104, Schedule I, §13.04.105, Schedule ED, §13.04.106, Schedule SC and §13.04.107,

Schedule 148, but pertains specifically to residential and commercial customers as currently

provided for in §13.04.103, Schedule R and §13.04.104, Schedule C.

18

EXHIBIT “B”

Ordinance Number: ________

AN ORDINANCE AMENDING ORDINANCE, ARTICLE 13.04.101 DIVISION 3, ELECTRICAL, REQUIRING

THAT THE MUNCIPALLY OWNED UTILITY BE DIVESTED, WITHIN A DESIGNATED TIME.

Be it ordained by the City Council of the City of Coleman, Texas that:

The City of Coleman shall, at its earliest convenience, sell, trade or otherwise transfer all of the

assets, or substantially all of the assets comprising its electrical transmission and distribution

system (T&D system), to an entity licensed to operate in the state of Texas that is duly certified by

ERCOT and PUCT for the transmission of electricity. The transfer may not be made to any entity

within the operational control of the City, nor incorporated by or on behalf of the City. The transfer

shall occur within the timeframe and financial parameters the City deems most beneficial;

however, such transfer shall occur no later than December 31st

2019. The City shall not extend the

termination date of the existing electrical contract between the City and AEPEP, nor enter into any

other contract with any other entity, which could cause the City to operate as a MOU beyond the

date of December 31st

2019.